Crime and Punishment in American History - Lawrence M. Friedman [53]
The criminal law of slavery was complex. As we have seen, each colony had developed a code of laws about master and slave. The northern codes, of course, came to an end when the northern states passed laws to abolish slavery, soon after the Revolution—Vermont already in 1777, Pennsylvania in 1780.1 By the early nineteenth century, northern slave laws were dead or moribund. But in the South, no such development took place. The slave codes continued, they grew, they were discussed, added to, changed; they lasted in full flower until the end of the Civil War, when the abolition of slavery was forced down the throats of a beaten and disheartened Confederacy. The Thirteenth Amendment to the Constitution made the death of slavery official, part of our fundamental law. The racial reality, however, was not so easily reached by gallant words.
During the high noon of slavery, the slave codes were important documents. They varied in their details, from Florida to Arkansas to Texas; but the general outlines were, depressingly, much the same. To begin with, the law codified and expressed the basic theorem of slave law. This was the massive power of masters and mistresses, and the power of their agents and overseers. The concrete form of this power was the right to administer summary punishment or “correction.” In plain, blunt English, it was the power to beat, to hit, to flog, to whip, to inflict quick and dirty punishment, on the spot and to the point.
Parents have this kind of power over small children; they are judge, jury, and enforcer, all rolled into one. Parents, of course, can abuse their power; and they often do. Power, for most parents, is tempered by great love. Apologists for slavery insisted that southern slave-owners were just like parents in this regard; they loved their slaves, cared for them, were anxious for their welfare. According to George Fitzhugh, one of the South’s most articulate spokesmen, the slaveholder was “the least selfish of men,” because he was “the head of the largest family”; there never was a man “who did not like his slaves”; the relation of master and slave was “one of mutual good will.”2 Perhaps Fitzhugh actually believed this tripe. In fact, many masters, mistresses, and overseers were vicious and cruel; the essential savagery of slavery ran very real and very deep.
Punishment on the plantation was, essentially, physical punishment. The whip was the correctional instrument of all purpose. Usually, the slave was stripped to the waist, hands tied, and flogged on the back. On James Henry Hammond’s plantation in South Carolina, the overseer whipped eight slaves soundly for being slow in returning to work after the Christmas holidays. When the slaves “appealed to Hammond for sympathy, he responded by ordering them flogged again.” Hammond believed in whipping, though not to exceed “100 lashes in one day & to that extent only in extreme cases. The whip lash must be one inch in width. In general 15 to 20 lashes will be a sufficient flogging.”3
Whipping was thus a way of life on the plantation. The whip was “in constant use,” according to Frederick Law Olmsted, who traveled through the “cotton kingdom.” There were, he thought, “no rules on the subject”; overseers and drivers “punished the negroes whenever they deemed it necessary, and in such manner, and with such severity, as they thought fit.” An overseer told Olmsted: “I wouldn’t mind killng a nigger more than I would a dog”; this man also said that some slaves were “determined never to let a white man whip them, and will resist.... Of course you must kill them in that case.” Olmsted saw a slave girl brutally whipped with a rawhide whip: first, the overseer gave her thirty or forty “blows across the shoulders ... well laid on.... At every stroke the girl winced.” Then